LETTER OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of January 9, 2008 No. 7/9/1/13-08

About practice of application by administrative courts of the legislation on cases on occasion of decisions, actions or divergence of the public executive service (on the materials considered in cassation procedure by the Supreme administrative court of Ukraine)

According to the procedure of information and for accounting by hearing of cases the overview of court practice of the Supreme administrative court of Ukraine on cases on occasion of decisions, actions or divergence of the public executive service is sent.

1. Decisions, actions or divergence of the public executive service in case of accomplishment of the judgment, by the general rule, are appealed in court which issued the executive document

Of 23.11.2005 the writ of appeal of Society - the debtor in enforcement proceeding on forced accomplishment of the order of economic court on determination of the same court together with case is transferred of 20.09.2005 by determination of the Supreme Economic Court of Ukraine to the Supreme administrative court of Ukraine based on Items 7, of the 10th Section VII "Final and transitional provisions" of the Code of administrative legal proceedings of Ukraine.

Refusing opening of cassation production, the Supreme administrative court of Ukraine specified the following.

According to Item of 1 part one of article 3 of the Code of administrative legal proceedings of Ukraine case of administrative jurisdiction (administrative case) is the public dispute transferred to permission of administrative court in which at least one of the parties is the executive body, local government body, their official either the official or other subject who performs imperious managerial functions on the basis of the legislation, including in pursuance of the delegated powers.

Part one of article 181 of this Code provides that participants of enforcement proceeding (except the state contractor) and persons who are involved in carrying out executive actions have the right to appeal to administrative court with the action for declaration if consider that the decision, by action or divergence of the state contractor or other official of the public executive service violates their rights, freedoms or interests and also if other procedure for judicial appeal of decisions, actions or divergence of such persons is not established by the law.

By Article 121-2 of the Economic Procedure Code of Ukraine it is determined that claims to actions or divergence of bodies of the public executive service for accomplishment of decisions, determinations, resolutions of economic courts can be submitted by vzimatel, the debtor or the prosecutor within ten days from day of making of the appealed actions, or from day when specified persons knew of it, or from day when action be made.

Considering stated and accepting in attention that determination of economic court is accepted of 20.09.2005 by results of consideration of the claim of the debtor to actions of body of the public executive service for accomplishment of the order of economic court, production according to the specified claim is not administrative case and therefore is not subject to cassation consideration according to the procedure of administrative legal proceedings.

2. The question of delay or payment by installments of accomplishment of the decision, change of method and procedure for accomplishment of the decision, determination, the resolution of economic court is solved economic court

Determination of local economic court of 06:06. 2006, the determination of Economic Court of Appeal left without changes of 05:09. 2006, it is refused allowance of the application about postponing of execution of the order of economic court.

Reviewing decisions of the courts of the previous instances in cassation procedure, the Supreme administrative court of Ukraine stated the following line item.

According to part one of the article 121 "Delay or Payment by Installments of Accomplishment of the Decision, Change of Method and Procedure for Accomplishment of the Decision, Determination, Resolution" of the Economic Procedure Code of Ukraine in the presence of circumstances which complicate accomplishment of the decision or make it impossible, according to the statement of the party, the state contractor, on representation of the prosecutor or his deputy or for the initiative economic court which issued the executive document, in ten-day time considers this question in judicial session with challenge of the parties, the prosecutor or his deputy and in exceptional cases, depending on the facts of the case, can delay or spread accomplishment of the decision, determination, the resolution, to change method and procedure for their accomplishment.

The question of delay or payment by installments of accomplishment of the resolution or determination of appeal or cassation instance in the presence of the circumstances provided by part one of Article 121 of the Economic Procedure Code of Ukraine is solved by appeal or cassation instance if these circumstances became known to it before removal of determination or the resolution by results of review of the decision of economic court of the first instance.

In other cases i.e. when the corresponding application is submitted by the party, the state contractor after removal of determination or the resolution by appeal or cassation instance, the question of delay or payment by installments, change of method and procedure for accomplishment of this determination or the resolution solves economic court of the first instance.

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